February 26, 2017

This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.

Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

With regards to U.S. v. Dean, I was wondering if you could elaborate a little on the tension that seems to exist between the 8th Circuit opinion in U.S. v. Hatcher with its emphasis on U.S.S.G. § 5G1.2(a), and U.S. v. Smith (authored by Gorsuch) with its emphasis on the plain language of 18 U.S.C. § 3661. It did not appear that you mentioned the former in your ScotusBlog preview and my reading of Hatcher and Smith is that these two provisions are in tension and one must give to the other (I will not claim to be an expert in this area and as such may have missed obvious points).

In Hatcher the 8th Circuit states that "[t]he Guidelines are unequivocal: a sentence that “run[s] consecutively to any other term of imprisonment, shall be determined by that statute and imposed independently.” U.S.S.G. § 5G1.2(a) (with emphasis added to "imposed independently." Gorsuch's opinion in the 10th Circuit starts off by dismissing the government's claim that a district judge is supposed to act willfully blind to the 924(c) sentence, writing: "Viewed with a cold eye, the relevant statutes permit a sentencing court to consider a defendant's § 924(c) conviction and sentence just as they permit a sentencing court to consider most any other salient fact about a defendant." The reliance appears to be on 18 U.S.C. § 3661, with the court writing: "We begin with 18 U.S.C. § 3661. “No limitation,” says the statute, may be placed on a court's power to consider information about a defendant's “background, character, and conduct” when seeking to fashion an appropriate sentence." Gorsuch immediately then references Pepper v. U.S. as giving added weight to the provision cited in 3661. The analysis in Smith appears focused on the language of 924(c) and 3661, and Gorsuch appears correct in showing the weakness of the governments claim in that regards. However, the 5G1.2(a) argument made by the government, which is the key focus of the Hatcher decisions, is dismissed in a footnote in Smith. That footnote reads:

"The government (but not the dissent) argues that § 5G1.2(a) advises sentencing courts to disregard § 924(c) mandatory minimums when fixing related prison sentences. In fact, § 5G1.2(a) does no such thing. That provision merely advises that mandatory minimum sentences like those found in § 924(c) should “be determined by that statute and imposed independently” of other sentences. So a § 924(c) gun sentence should be determined by the minimums prescribed in that statute rather than using a § 3553(a) analysis (no surprise there) and should run consecutively to any other sentence imposed for the underlying crime (no surprise there either). Absent in § 5G1.2(a) is any suggestion that the sentence for the underlying crime must be calculated without reference to the existence of the § 924(c) sentence. See United States v. Rodriguez, 112 F.3d 26, 30 (1st Cir.1997); Vidal–Reyes, 562 F.3d at 55. Indeed, the applicable note confirms that § 5G1.2(a) only requires that § 924(c)'s mandatory minimum “be imposed to run consecutively to any other term of imprisonment.” U.S. Sentencing Guidelines Manual § 5G1.2 cmt. n.2. Here again there is no effort to control or dictate what that “any other term of imprisonment” should be."

The governments brief in Dean really only mentions 5G1.2(a) as adding support to its 924(c) argument. I have only briefly looked through Hatcher and Smith so I am not aware of the rationale that was used by other courts that agreed with Hatcher's result. It would seem to me, after my cursory analysis, that Hatcher relies on the governments 5G1.2(a) argument to uphold the lack of district court discretion while Smith relies on the wording of 924(c) to affirm district court discretion. Do you have any additional insight into this tension that you believe is relevant? Is Gorsuch correct in his interpretation of 5G1.2(a) analysis? And lastly, even if 5G1.2(a) were to support the government's position, would it be subordinate to Gorsuch's 924(c) analysis since the former is part of the advisory guidelines and the latter is statute.

I would love to hear some of your thoughts on this, unless I am way out in the deep-end on my analysis, then feel free to dismiss me.

Posted by: Sean | Feb 27, 2017 10:18:12 AM

It is impossible and certainly an unfair burden to expect a registrant to "know" whether or not minors may have an account on any particular website. The registry seeks the impossible, requiring registrants to "know" the "unknowable". Any given website is open to minors, does N. Carolina believe that because a website states "must be 18ys of age to access website" that kids really abide by that? The courts can't be that naive. That would mean any website potentially puts a registrant in jeopardy, with the responsibility of "knowing the unknowable" on the registrant.

Packingham served his sentence, whether prison or probation, his sentence is served. Time for all states to let ex-offenders get on with their lives without constant harassment. And time for the registry to end for anyone but the most violent of predators.

Posted by: kat | Feb 27, 2017 10:20:53 AM

My opinion: Every case is different and should be treated as such. Common sense and our Founder's wisdom should prevail, communities need to take care of their own and quit using Corporation Courts! Juror's need to know their rights. Parents need to be responsible for their off spring and our schools need to teach! Teach responsibility, morals, respect and country.

Posted by: LC in Texas | Feb 27, 2017 10:53:41 AM

"our Founder's wisdom"

Douglas A. Berman?

Posted by: Joe | Feb 27, 2017 12:05:22 PM

Sean, you are not "way out in the deep-end," but I do not think either USSG § 5G1.2(a) or 18 USC § 3661 solves or resolves the issue in Dean. More broadly, like a lot of hard sentencing issues, Dean is a case in which textualism can only get you so far unless you already know where you want to end up and can than grab some vague text and use it to try to contend a position is required by the text.

Posted by: Doug B. | Feb 28, 2017 11:11:35 AM

From today's oral argument: Chief Justice Roberts: "Congress doesn't pass thrusts, they pass language, and there's nothing in
the language that prevents the judge from imposing a sentence recognizing that the defendant faces 30 years already." That will be the opening line in the majority opinion siding with Petitioner.

Thanks for your response to my comments. I just finished reading through the transcript and making notes and I see that the 5G1.2(a) issue is only briefly touched on by the government. It does seem odd that in a case in which the Court phrased the question as whether Hatcher should be overruled in light of Pepper, Pepper is never once mentioned in oral argument. In reference to textualism though, it seems apparent that Kagan, and likely Roberts, would say that a strictly textualist approach to this case means a win for Dean. In questioning the government Kagan says that "if we're going to be strictly textualist here, this [924(c)] does not have the kind of requirement you wish it had, which is to say it doesn't have the language that's in 1028A." This is immediately after Roberts says to the government "[i]f you think the case is resolved at a higher level, it seems to me that -- your friend has a very good technical argument that says these sentences have to run concurrently. One day, they run concurrently, end of case." I assume Roberts meant to say consecutively as concurrently does not make sense given what he is saying. Roberts goes on to sum up the governments argument as being the need to look at the "drafting history," the "commentary to 2K2.4," and other arguments to conclude that while the district court sentencing Dean to 30 years plus one day is "technically correct, [] it's obviously not what Congress h ad in mind." In other words, at least Roberts and Kagan seem to think that textualism here results in a win for Dean because adding a 1 day sentence to a 10,950 sentence is technically a consecutive sentence, regardless of of the fact it is only a .0091% increase to the mandatory minimum (maybe Congress should have specified a percentage threshold in its drafting of 924(c)." Roberts goes on to suggest that even if the governments holistic approach to the statute is accurate, the rule of lenity might need to be applied.

Reading the tea leaves from oral argument it seems that Dean wins based on the plain, unambiguous language of 924(c). That is, this is a case in which a "conservative" textualist approach results in a "liberal" result (using the traditional assumption that a victory for a criminal defendant is a coded as a liberal ruling).

Posted by: Sean | Feb 28, 2017 5:22:45 PM

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